The House of Representatives’ Jan. 6th Select Committee investigating the breach of the U.S. Capitol, is participating in practices that could set a perilous precedent when it comes to protecting individuals’ privacy and civil liberties, according to legal experts.
As part of its investigation, the committee has already asked 35 tech and communications companies to keep the digital data gathered from hundreds of people who may have been involved in or have information pertaining to what happened on the day Congress met to certify the results of the 2020 election.
While it is not uncommon for prosecutors to subpoena social media companies to hand over information related to a case, these requests typically come with warrants that show some type of probable cause that justifies gaining access to the data in question.
In this case, New York-based attorney John Tolley noted the committee has sent out “letters of preservation and not subpoenas.” The requests supposedly covered people who were peacefully protesting at the Capitol and did not take part in altercations outside the building or try to enter it.
“Many times, in cases, prosecutors send out letters to potential defendants called letters of preservation, so they are on notice to retain all documents relevant to a certain issue. If they fail to comply with this request then, in some states, a presumption exists where that party had incriminating evidence,” he said. “However, in this case, you’re talking about a third party you’re attempting to get evidence from.”
Federal criminal investigations typically require a warrant to obtain a person’s social media posts or communication records, a request which Tolley notes is standard and “not too hard to overcome.”
In this case, however, the House select committee is the entity making the request— and a select committee does not have the same legal standing as would a federal prosecutor.
“So the question will be, If they obtain these documents without using the proper legal channels, will that be a violation of an individual’s 4th Amendment right to privacy?” Tolley asked.
Even though the social media firms have not been asked to turn over the information as of yet, the request has given some Republicans pause.
House Minority Leader Kevin McCarthy, R-Calif., issued a scorching statement warning that the committee’s “attempts to strong-arm private companies to turn over individuals’ private data would put every American with a phone or computer in the crosshairs of a surveillance state run by Democrat politicians.”
Tolley said that if the Jan. 6 committee can “obtain information from a social media company — that the user did not make public — without a warrant, it would be a terrible precedent and would essentially go against the foundation of American principles.”
He cautioned that this “small step could open the door to much larger and more dangerous invasions of our constitutional rights and privacy.”
Paul Engel — founder of The Constitution Study, a tool that helps Americans read and understand the Constitution — said the Jan. 6 committee is continuing the “political grandstanding” that committees have participated in for decades, however it’s taking it a step further by setting dangerous standards regarding digital data.
Engel reminded that as the legislative branch of government, Congress’ power and focus should be “to create law, not investigate crimes, or collect data for future prosecutions.”
“There is no power delegated to Congress by the Constitution to demand records or to order companies to retain records for possible future investigations or prosecutions,” he said. “This stunt by congressional leaders is usurping the powers of both the executive and legislative branches of government.”
He said that, when comparing the “actual actions of those who entered the Capitol” with the “complete disregard of more violent attacks on federal property” orchestrated by social justice activists nationwide last year, “this can only be described as a political witch hunt.”
Rep. Jim Banks, R-Ind., described the Jan. 6 committee and its investigation as a “sham,” on Twitter, adding that its members were “engaged in an UNCONSTITUTIONAL political investigation.”
While many politicians and media outlets have called the breach an insurrection, a term that helps establish a reason for committees, investigators, and prosecutors to circumvent precedent, no one involved in the incident has been charged with anything even close to an insurrection.
Nicholas Creel, a business law professor at Georgia College and State University, likened the select committee to the commissions that operated during the McCarthy era in the 1950s, when Republican Sen. Joseph McCarthy of Wisconsin conducted investigations and hearings in a bid to expose prominent communists and socialists.
“The McCarthy era saw people blacklisted, totally denied employment in any capacity, for their political beliefs alone,” he said. “The Jan. 6th commission, on the other hand, is aimed at investigating actual illegal behavior.”
Creel said private citizens do have a constitutional right to be “free from warrantless government searches in all instances where they enjoy a reasonable expectation of privacy.”
“However, when you share information with a third party, it often becomes the case that any 4th Amendment protections you might have enjoyed are now waived,” he said. “Many of these entities Congress is requesting information from are likely to fit into this exception.”
Privacy expert Rob Shavell, co-founder and CEO of DeleteMe, said that, “today Big Tech has become a one-stop shop for every detail about people’s lives, which allows them to request complete data dumps for entire groups of ‘persons of interest’ without those people ever needing to be informed that their information is an open book.”
Shavell said most people “don’t realize the degree to which lives increasingly led online leave a permanent record of everything they do” and that America’s privacy laws “have not kept up with changes to technology and human behavior.”
